Old Age and Survivor's Insurance

Rescinded 1978

SSR 69-2: Section 202(b)(1)(D).—Wife's Insurance
Benefits—Court Order for Support of Divorced Wife— Termination
of Order Upon Remarriage

20 CFR 404.1105

SSR 69-2

Under New York law, a court order requiring a divorced husband to support
his former wife ceases to have effect upon her remarriage and is not
revived upon death of her later husband. Accordingly, where a worker's
obligation to make weekly support payments to his divorced wife pursuant
to a court order for support terminated upon the divorced wife's
remarriage and subsequently the worker became entitled to old-age
insurance benefits, there was no court order for support in effect within
the meaning of section 202(b)(1)(D) of the Act at the time the worker
became entitled to such benefits. Therefore, such individual's application
for benefits as a divorced wife must be denied.

After nearly 30 years of marriage, claimant W, in 1929, obtained a final
decree of divorce from the worker, R, in New York. The decree of divorce
included an order for weekly support payments to W. This order was never
amended or formally struck from the records. In 1949 W married H,
whereupon R discontinued his support payments to her. R became entitled to
old-age insurance benefits in May 1950. H died uninsured in 1963,
therefore no survivor benefit was payable on his earnings record. In
December 1965, W filed application for wife's insurance benefits under
section 202(b)(1) of the Act, as amended, as the divorced wife or R.

Section 216(d)(1) of the Act provides that:

The term "divorced wife" means a woman divorced from an individual, but
only if she had been married to such individual for a period of 20 years
immediately before the date the divorce became effective.

R and W had been married for nearly 23 years at the time of her divorce
in 1929, therefore, W meets the definition of "divorced wife" in section
216(d)(1), supra.

Section 202(b)(1) of the Act provides in pertinent part that the divorced
wife (as defined in section 216(d) of an individual entitled to old-age
insurance benefits may become entitled to a wife's insurance benefit if
she—

(D) * * * was receiving at least one-half of her support, as determined
in accordance with regulations prescribed by the Secretary, from such
individual, or was receiving substantial contributions from such
individual (pursuant to a written agreement) or there was in effect a
court order for substantial contributions to her support from such
individual—

*
*
*
*
* *

(ii) * * * at the time he became entitled to old-age insurance benefits *
* *.

Under the facts of this case, it is clear that claimant was not receiving
support payments from R at the time R became entitled to old-age insurance
benefits in May 1950. Thus, the only question presented is whether under
New York law, there was in effect at that time a court order for
claimant's support.

Under New York law, the obligation of a former husband to support his
divorced wife ceases when she remarries. Gaines v. Jacobsen, 308
N.Y. 218 (Ct. App. 1954), 124 NE 2d 290; Sleicher v. Sleicher, 251
N.Y. 366 (Ct. App. 1929), 167 NE 501. Section 248, New York Domestic
Relations Law, permits a divorced husband, after the remarriage of his
former wife who was entitled to support payments from him, to have the
provisions for support stricken from the divorce judgment by motion to the
court which granted the divorce. Under this New York statute, the granting
of such a motion is mandatory. Kirkbride v. Van Noe, 275 N.Y. 244
(Ct. App. 1937), 9 NE 2d 852.

The courts of New York have also held that even though no such motion is
filed by the former husband, the support provision is invalidated by the
divorced spouse's remarriage and cannot be enforced by her after that
time. Furthermore, the fact that W's second husband later died would not
revive her first husband's obligation of support based on the prior
support order, even though that order was never formally stricken from the
court's records. Kahler v. Searl, 18 N.Y.S. 2d 246 (App. Div. 2d
Dept. 1940), 259 AD 729.

Accordingly, it is held that the court order obligating R to
support W, having terminated under New York law upon W's remarriage, was
no longer in effect at the time R became entitled to old-age insurance
benefits. Therefore, since none of the requirements of section
202(b)(1)(D) of the Act is met, W's application for benefits as a divorced
wife must be denied.

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